Clemence M. Noakes
Lockheed Martin Idaho Technologies Company.

On December 20, 1996, the Department of Energy (DOE) proposed moving to external regulation by the Nuclear Regulatory Commission (NRC) for its nuclear health, safety, and security. On March 28, 1997, NRC agreed to begin the process of accepting this responsibility. Unlike DOE's low-level radioactive materials, for which comparable NRC regulations exist, DOE-generated spent nuclear fuel (SNF) and associated high-level waste (HLW), as well as its transuranics, have very few equivalent NRC codes.

The purpose of this paper is to describe the federal licensing and regulation of nuclear material, in general and specifically in managing SNF and HLW.

The DOE SNF types (enrichment and materials of construction) are unique and relatively unknown to the NRC, and, if it is to regulate these materials, the NRC must develop regulations to cover these fuels and their associated HLW. During this interim period, state regulatory milestones for DOE facilities are scheduled for completion, and the federal government is obliged to prepare NRC license applications within the framework of the existing Departmental regulations for those activities requiring NRC licenses. This an opportunity for federal departments and agencies to develop streamlined, cost-effective technical licensing programs, and there are NRC-DOE pilot programs conducting research and developing new regulations to allow NRC licensing of these materials.

DOE is in the initial stage of determining the appropriate regulatory and licensing authority for its nuclear-related activities. Historically, regulatory jurisdiction over DOE activities has derived from several agencies depending on the activity's relevance to the DOE mission. Currently, DOE only has direct self-regulatory authority over its nuclear activities that serve its statutory mission. However, it is responsible for a far wider range of activities, including site closures, divestiture, and privatization. Appropriate regulatory and licensing strategies must be developed for the entire range of DOE responsibilities. Privately-funded facilities are not always under NRC regulation; nor are all DOE-owned/contractor-operated facilities under DOE's authority. DOE's and NRC's regulatory jurisdictions are not necessarily obvious, and, therefore, each new project, whether it is privatized or not, must be examined on a case-by-case basis.^a

Today's DOE nuclear safety activities were initiated with the First War Powers Act of 1941, the first statute that began the succession of legislation culminating in DOE. Nuclear-related activities had been ongoing in the commercial industry prior to this date, but 1941 marks the first federal statutory intervention in this area. In 1946, electricity generation by nuclear power for private use was a distant goal that was considered achievable by the Atomic Energy Commission (AEC) and its contractors, operating as a virtual government enterprise. The Atomic Energy Act (AEA) of 1946 transferred jurisdiction over atomic energy from military to secular regulation. Technology advanced much more quickly than expected, and the AEA of 1954 reflected Congress' posture that it was time to introduce commercial capabilities into the development process to promote competition.

Congress enacted the Energy Reorganization Act (ERA) of 1974 to combine the federal government's fragmented and disapportioned energy research and development functions and to enhance the regulation of nuclear power. By 1977, it was obvious that the development and implementation of a uniform, comprehensive national energy and conservation strategy was being severely restricted by divergent mandates and overlaps in jurisdictions among several federal agencies. The Department of Energy Organization Act of 1977 endeavored to remedy these problems by consolidating the functions of several agencies and categorical activities of other departments into one organization.

Under the Atomic Energy Act (AEA), the offices that later became DOE and NRC were given the authority to regulate nuclear safety "in performance of (their) functions." Under ERA, licensing and associated regulatory roles were assigned to the NRC, and most of the complement was delegated to what was then called the Energy Research and Development Administration (ERDA), now known as DOE. ERDA's regulatory jurisdiction was always incumbent upon its responsibilities. In addition to § 161 of the AEA, the ERA added §105 (b), which gave the Administrator, now known as the Secretary of Energy, regulatory authority necessary to perform the functions vested in him/her.

§ 202 of the ERA stipulates that four types of DOE facilities must be regulated by the NRC:

Under the DOE Organization Act, the functions and authority of ERDA were transferred to DOE and the Secretary was given authority to regulate in order to administer and manage the functions vested in him/her.

A historical overview of nuclear safety legislation is provided in Table I.

Table I. Historical Overview of Nuclear Safety Legislation^b

The current concept for NRC's external regulation of DOE was initially put forth in March 1994 by Congressman George Miller (California), then chair of the House Natural Resources Committee. A counterproposal establishing an advisory committee headed by former NRC Acting Chairman John Ahearn was offered by DOE. The advisory committee reported in December 1995 that DOE should have external nuclear regulation, but it did not suggest any particular agency for this task. Also in 1995, the NRC was considering oversight of DOE nuclear safety as parts of its strategic assessment and rebaseline initiative, and the NRC found strong public support for this posture. Subsequently, DOE established a departmental working group that made the recommendation that pilot studies should be conducted to determine whether or not NRC should be made DOE's regulator in a phased transition. The phased transition was a result of lessons learned from the non-phased external regulation transition of the 1992 Federal Facilities Compliance Act, which subsequently consumed DOE's budget for the next foreseeable three decades.

The current delineation of nuclear authority can be found in Code of Federal Regulations (CFR) Title 10, summarized in Table II.

A synopsis of today's regulatory status is as follows:

LLNL and REDC will be described in this paper. The SNF pilot has not, at this time, been focused as to which genre of SNF would be most beneficial for study.

DOE has entered into a Memorandum of Understanding (MOU) with NRC to cooperate on external regulation pilots, with the intent to "simulate" external regulation in DOE facilities without NRC regulatory jurisdiction. NRC will observe current safety operations at pilot facilities and compare them to NRC requirements. NRC will report actions necessary to bring pilot facilities within NRC regulatory requirements. DOE will analyze the NRC information and will compute the cost of bringing the pilot facilities within NRC requirement compliance. Both agencies will conduct a cost-benefit analysis for changing to NRC regulation and will issue a final report, including recommendations on whether to seek legislation to extend NRC jurisdiction to some or all of DOE's facilities. Three categories of facilities will be studied: nuclear energy, energy research, and environmental management; defense programs will not be incorporated. In the broadest sense, the following context is being sought: (1) facilities that fit within the broad scope material licensing umbrella, (2) those limited to a specific license under a material approach, (3) non-power reactor facilities, (4) fuel cycle facilities, and (5) low-level waste burial facilities.

LBNL is the first pilot; it performs multidisciplinary research in energy, general science and biosciences. This is very similar to work the NRC regulates at many universities. LBNL has about 440 graduate students annually, with approximately 100 of those receiving a graduate degree based partially on the work they are performing at LBNL. New challenges to the NRC would be regulation of the national tritium labeling facility, as well as the accelerator. Studying LBNL also allows the evaluation of (1) whether the licensee should be the University of California or DOE (2) whether the whole site or only portions of LBNL should be regulated by the NRC, and (3) whether the regulation should be from the NRC or the agreement state of California.

Work at REDC involves production processes and product forms for radioisotopes, primarily transuranics, that are used throughout the world for basic physics and chemistry studies on transuranium elements. They are also used in programs relating to environmental effects, biological effects, biomedical applications, and waste isolation.^h This pilot would provide experience with irradiated fuel assemblies, hot cells, and heavy elements.ⁱ

The proposed INEEL Spent Nuclear Fuel Dry Storage Project is a contractor-owned, contractor-operated ISFSI on the INEEL reservation. Three genres of fuels are being considered for storage in the facility: fuel from (1) the Shippingport Atomic Power Station (SAPS), (2) the Peach Bottom Unit I reactor, and (3) research activities using TRIGA fuel elements.

The SAPS, located on the south bank of the Ohio River in Shippingport Borough, Beaver County, Pennsylvania, was the first large-scale, central station application of nuclear power for civilian use in the United States. SAPS was jointly owned by ERDA and the Duquesne Light company. The Duquesne Light Company owned the land; ERDA owned the facility. It was regulated by ERDA. This fuel type contributes approximately 43 metric tons of heavy metals proposed to be stored in the ISFSI.

The Peach Bottom Unit I reactor was a high-temperature gas-cooled reactor located in Peach Bottom, Pennsylvania. This reactor was privately owned, used for civilian power, and was regulated by the NRC. The TRIGA fuels were used primarily by universities, hospitals, and the Foreign Research Reactor Programs (FRRP) for research rather than power. The Peach Bottom and TRIGA fuels together contribute approximately 3 metric tons of heavy metals proposed to be stored in the ISFSI.

§ 202 of the ERA requires that NRC must regulate DOE facilities expressly authorized for subsequent long-term storage of high-level radioactive waste generated by DOE that are not used for or part of research and development activities. The Shippingport fuel was used as a demonstration of DOE's research and development activities and was regulated by DOE during this activity. The Peach Bottom fuel was used for civilian power and was regulated by the NRC. The TRIGA fuels used by universities and hospitals were used in research and were regulated by the NRC. The TRIGA fuels used by the FRRP were used in research. Because of the differing use, ownership, and regulation of these fuels, nuclear safety jurisdiction of the proposed project is not clear-cut and is currently being reviewed.

The Hanford TWRS is a two-phased privatization project initiated in June 1996 for 177 storage tanks containing approximately 55 million gallons of high-level waste. The project was competitively awarded to two corporate conglomerates: Team I: Lockheed Martin Advanced Environmental Systems as lead with Molten Metal Technologies, Numatec, Fluor Daniel Inc., Babcock & Wilcox, EnVitCo, Duke Engineering & Services, Inc., AEA Technology, OHM Remediation Services, LATA, and Nukem Nuclear Technologies Corp., and Team II: British Nuclear Fuels Limited, Inc. as lead with Science Applications Incorporated Corp., Bechtel, and GTS-Duratek.^j

The Office of Radiological, Nuclear, and Process Safety (RNPS) has been established as a Regulatory Unit (RU) to ensure adequate safety of TWRS activities involving the fifteen corporate entities by providing policy for the facilitation of the TWRS Privatization Program for a smooth transition from DOE regulation to NRC regulation. The aim of the RU is to establish a regulatory environment that will permit privatization to occur in a timely, predictable, and stable manner, and assure safety consistent with regulatory concepts and principles of NRC.^k Oversight by the RU of the TWRS privatized contractors secures the following:

1. Providing adequate safety of the workers and the public;
2. Complying with applicable laws, regulations, and requirements; and
3. Conforming to DOE-stipulated overall safety standards and principles.
4. Enhancing confidence in the safety of privatized contractors' activities;
5. Providing predictability and stability of regulation through application of proven regulatory concepts, principals, and experience of a functioning external regulatory agency;
6. Providing the basis for a smooth transition to external regulation; and
7. Arriving at correct and timely regulatory actions based on contractor compliance with regulatory expectations.

The TWRS has always been intended to be contractor-owned and -operated on the DOE-Hanford site for the purpose of waste treatment services. Some remuneration will be made by DOE during the design phase. Once a design is accepted, the construction and operation of one or more facilities is to be entirely privately financed. DOE will pay for only finished product: acceptably treated waste.

These activities were determined to come within DOE's regulatory jurisdiction because, even though the facilities will be contractor-owned and -operated, the activities are deemed to be under the exception from the requirement to be licensed under § 110 (a) of the AEA because it will be "construction and operation of facilities under contract with and for the account of (DOE)." Factors contributing to this determination are:

1. the facilities will be on the Hanford reservation; and
2. the contractors will be performing services in the facilities exclusively for DOE.

However, the long-term storage of the HLW resulting from this contract will be subject to NRC licensing requirements under § 202 (4) of the ERA.

Consequently, the TWRS proof-of-process Phase I is regulated by the RU using primarily DOE Orders. Phase I processing activities are scheduled to start in the year 2002 and last until 2012. The TWRS industrial-scale Phase II is regulated by the RU using the NRC's 10 CFR 0 - 200 regulations. Phase II starts in the year 2005 and completes about the year 2028. The actual transition to total NRC regulation will not occur until the treatment facility is operating under full capacity during Phase II.^k

During Phase I, an MOU exists between DOE and NRC. The RU during this phase is staffed by DOE personnel and one full-time NRC representative. The RU has weekly teleconferences with the NRC, and the NRC reviews and comments on all Phase-I deliverables.

The FSV nuclear reactor, located near Platteville, Colorado, was built and operated as an advanced reactor concept under a cooperative agreement dated July 1, 1965, among AEC, Gulf General Atomic, and the Public Service Company of Colorado (PSCo). As part of the agreement, AEC was to receive and dispose of FSV's SNF segments 1 through 8. Segments 1 through 3 were shipped to the INEEL between 1980 and 1986. Operational difficulties forced early shutdown of the FSV reactor in August 1989. PSCo decided to decontaminate and decommission the facility and to terminate the NRC license. Three spent fuel cask shipments containing fuel blocks from Segments 4 through 8 were shipped to INEEL in October 1991, before DOE discontinued shipments. This left the remaining fuel blocks from Segments 4 through 8, which were the majority of this population, which DOE was contractually obligated to receive and dispose, as well as all of Segment 9 at FSV, in Colorado. DOE was not contractually obligated to receive and dispose of any portion of Segment 9.

Consequently, PSCo designed an ISFSI to be located adjacent to the reactor facility in 1989. The NRC issued a license in November 1991, and the remaining elements were transferred to this facility by 1992. In December 1995, DOE notified NRC of its intent to procure the ISFSI from PSCo, to take possession of the fuel stored in it, and to transfer the NRC ISFSI license to DOE. A contract modification between DOE and PSCo for DOE to take title to the SNF and ISFSI was signed in 1996. PSCo continues to manage the SNF under the NRC license at DOE expense until the NRC license is transferred to DOE, which is anticipated in April 1998.^m

This project is a DOE-owned/contractor-operated facility storing SNF. Because the fuel primarily resulted from activities licensed under the AEA, this facility comes under § 202 of the ERA. It should be noted that the outcome may have been different if the fuel had been either primarily foreign- or DOE-generated fuel.ⁿ

The NCPP is a proposal for leasing facilities on the Rocky Flats site to the commercial sector. The activities to be conducted in the facilities are optional upon the Lessee, and DOE would not be the Lessee's exclusive customer. The NCPP has been determined to be beyond DOE's regulatory authority because the activities would not necessarily be in furtherance of DOE functions and the Lessee would not be operating the facilities for the account of DOE.^o

INEEL has proposed to have a subcontractor provide services for DOE by operating an onsite hot cell. Additionally, the subcontractor will be permitted to use DOE reactor irradiation services and to conduct commercial isotope production and distribution from the DOE facilities. Although the commercial isotope production and distribution was intended to replace DOE's isotope production and distribution, a problem arose in the plan because the subcontract would be limited by §>81 of the AEA, which limits DOE's authority to produce and distribute isotopes. DOE is permitted to distribute isotopes it owns, but must set its prices according to the provisions of § 81 and give preference to persons proposing to use the isotopes for R&D or medical purposes. Consequently, this proposal exceeds DOE's authority. Therefore, even though the contractor would have been operating onsite in a DOE facility, DOE could not regulate this activity because it is not within its functional scope.^p

The privatization of the gaseous diffusion plants (GDP) provided first-hand experience in the transition of DOE facilities to NRC regulation. The primary lessons learned are in the following categories:

1. DOE's authorization basis versus NRC's licensing program
2. DOE's research and development design basis and configuration control versus NRC's design requirements
3. Safety and accident analysis stipulations
4. Facilities that have both NRC and DOE presence
5. Management control and oversight.

An overview comparison of NRC regulations versus DOE regulations are summarized in Table III:

Table III. Comparison of DOE Orders and NRC Regulations^q

In DOE's self-regulating atmosphere, DOE's authorization basis is, in vernacular only, similar to NRC's licensing program. Both terms refer to construction, operation, maintenance, and modification of nuclear facilities. Because of the era in which they were built, many of the DOE facilities have an authorization basis that is not well-documented or well-defined. Some have antiquated Final Safety Analysis Reports amended by multiple Justifications for Continued Operation and Unreviewed Safety Question Determinations. A general overhaul of the GDP's authorization basis will be required in order to transition to the NRC licensing program.

Because DOE's mission was research and development, many of its facilities were designed and constructed so that industrial standards of design criteria and configuration control could be developed. Consequently, the construction records have been modified over the years without strict configuration control; some have been lost due to the significant length of time since inception, and some were incomplete initially. Many modifications were made during this era that were not documented. In order for these DOE facilities to be brought into NRC compliance, associated documentation with the rigor of modern reactor or fuel cycle design or operations requirements must be developed.

The existing accident analyses for many DOE facilities do not comply with NRC standards. Some facilities have Safety Analysis Reports (SAR) dating to the early 1980s that do not contain detailed and documented analyses of specific accident scenarios and consequences found in commercial SARs.

In the privatization of the GDPs, DOE retained ownership of the legacy waste, and the United States Enrichment Corporation became owner of the balance of the facilities. This requires that both NRC and DOE have a regulatory presence at the same facility. The NRC foresees potential cases where accountability may be in question and desires a very well-defined line of responsibility.

Most DOE facilities are managed and operated by contractors that are held contractually responsible for safe operation and regulatory compliance. This arrangement is considerably different from NRC, whose licensees generally manage and operate their own plants and are directly and solely responsible for safety and compliance.

There are three principles to remember. First, all of DOE's regulatory authorities are limited to those necessary to perform its functions. Second, DOE's contractors are exempt from NRC regulation if they are constructing or operating facilities "under contract with and for the account of" DOE. Third, if a DOE facility is described by § 202 of ERA, they must be licensed by the NRC, unless the facility is exempted by § 110 B of the AEA of 1954, as amended.

1. R. A. HENDERSON, Office of General Counsel, U. S. Department of Energy, Washington, D.C.
2. U. S. Department of Energy Home Page
3. DOE Organization Act
4. HUGH THOMPSON, Deputy ED for Regulatory Programs/Nuclear Regulatory Commission, "Public Meeting for Briefing by DOE and NRC on Regulatory Oversight of DOE Nuclear Facilities," September 19, 1997; Rockville, MD.
5. Oak Ridge National Laboratory Home Page
6. WILLIAM J. TAYLOR, "TWRS Privatization Presentation for Energy Daily's Second Annual DOE Privatization Conference", September 10, 1997
7. Department of Energy Office of Radiological, Nuclear, and Process Safety Regulation for TWRS Privatization Contractors Home Page
8. D. CLARK GIBBS, Regulatory Unit Official, Department of Energy Office of Radiological, Nuclear, and Process Safety Regulation for TWRS Privatization
9. S. E. LE ROY, Plan to Transition Ownership of the Fort St. Vrain Independent Spent Fuel Storage Installation to the U.S. Department of Energy (Docket 72-09), Revision No. 1-SEL-19-97, September 5, 1997
10. R. BUHL, T. MURLEY, G. EDGAR, and D. SILVERMAN, "NRC Regulation of DOE Facilities", Nuclear News, May 1997